The Office of the U.S. Attorney for the Southern District of New York recently agreed to return $38,000 of the $40,000 that federal agents seized from an Amtrak passenger, Mr. Ibrahim Emmam. Mr. Emmam agreed, among other things, to not contest the forfeiture of $2,000 of his money, to concede pursuit of an award of attorney fees for substantially prevailing in a federal asset forfeiture case, and to 'hold harmless' the U.S. Government and its agents for their role in the seizure and attempted forfeiture of the remainder of his cash.
For Mr. Emmam, who faced losing everything, settling, for those terms, presumably made sense. The settlement was surely better for Mr. Emmam than what happens to most people who have their things seized by law enforcement. Most people, of course, simply lose everything seized. For the few who fight the attempted forfeiture, they face losing everything and face (often cost-prohibitive) legal expenses and possible danger of incriminating themselves.
Still, one might wonder about the ethics of the agreement for the U.S. Government and its agents.
Our government, through its agents, took Mr. Emmam's money. It then moved to forfeit the entirety of his cash on the theory that Mr. Emmam's cash was 'guilty' of somehow being involved with the illicit drug trade. If accurate, according to federal law, that meant that Mr. Emmam's legal interest in all of the seized money divested once the money was used or derived from drug trafficking. That is, all of his money was 'guilty' and, again according to federal law, contraband that became the property of the U.S. Government. Forfeiting $2,000 of the $40,000, without stipulating that $2,000 of the money was guilty and the other $38,000 was not, then, seems to ungird its stated rationale for forfeiture.
Accepting the principles of asset forfeiture that the prosecutors used to move for forfeiture, for the sake of the discussion, absent a contrary stipulation, the U.S. Government either had zero right to the money (if it wasn't 'guilty') or had full right to all of the money (because it was 'guilty'). And if it had no right to the money, then conditioning the return of the $38,000 on conceding the $2,000 sounds more like extortion than the activities of a legitimate government. One imagines, at least, that prosecutors would be interested in private parties that made a habit of taking individuals' cash and offering to return 95% of the money on the conditions that the affected parties gave up 5% and agreed to not pursue legal remedies to reclaim the remainder.
On the other hand, again accepting such principles of asset forfeiture for the sake of the discussion, why are prosecutors returning 95% of the money to Mr. Emmam if they sincerely believe that the money is 'guilty' and that asset forfeiture is justified? Simply charging individuals small sums of cash for raising the suspicions of law enforcement or prosecutors, on threat of confiscating larger sums of cash, isn't an ethically tenable position.
Furthermore, ethical issues are raised by conditioning the return of one's confiscated money on agreements to waive rights to seek awards of legal expenses and to 'hold harmless' the government and its agents for seizing one's money and attempting to forfeit it. Congress passed the "Civil Asset Forfeiture Reform Act of 2000 'to make federal civil forfeiture procedures fair to property owners and to give owners innocent of any wrongdoing the means to recover their property and make themselves whole after wrongful government seizures.'" United States v. One Lincoln Navigator, 328 F.3d 1011, 1012 (8th Cir. 2003), Quoting from H.R.Rep. No. 106-192, at 11 (1999);see Pub.L. No. 106-185, § 2, 114 Stat. 202.
Permitting prosecutors to threaten to take large sums of money, for small sums of money, while indemnifying themselves, is against the spirit of the reforms Congress passed. Moreover, what little accountability that the U.S. forfeiture regime allows for is provided by making the government and its agents liable for their overreaches.